I HAVE TWO WORDS FOR YOU: INCLUSION RIDER (AKA AFFIRMATIVE ACTION)

This year’s Oscars were not just glamorous- they were political! And no surprise, the #metoo and #timesup hashtags took off in large part because female celebrities started naming and shaming their famous sexual harassers. But you don’t have to be a regular on the red carpet to build on Frances McDormand’s call for an “inclusion rider”. Even the regular folks among us can do our part to commit to diversity and inclusivity in the workplace through affirmative action.

WHAT IS AN INCLUSION RIDER?

Last night, McDormand ended her Oscar acceptance speech by saying “I have two words for you: inclusion rider.” (Hamilton area readers are temporarily excused if they missed this because they were a little distracted by their Hamilton-filmed The Shape of Water fan-girl/fan-boying).

An “inclusion rider” or “equity clause” would let movie stars stipulate that the films they work on have demographics reflective of our real (diverse!) world. Options for insuring compliance could include things like a term charging a penalty fee for failure, which in turn could be donated to an organization supporting women directors. You can learn more about the idea here.

SO WHAT IF I’M NOT A FILMMAKER?

You don’t need to be a filmmaker to formalize your commitment to workplace diversity and inclusion. While a lot of people treat the phrase “affirmative action” like it’s a dirty word, it’s legal in Ontario and Molyneaux Law thinks it’s a good idea. Creating your own inclusion rider is a great way to hold yourself accountable for your goals of non-discrimination, diversity and inclusion.

Ontario employers are generally not allowed to discriminate against employees or job candidates based on a list of their race, colour, ethnicity, ancestry, place of origin, citizenship, sex, family or marital status, sexual orientation or disability. With a few more exceptions, they are barred from discrimination on the basis of age and record of offences, too. However, this doesn’t mean they are required to treat everyone the same! Ontario and Canadian law recognizes the importance of employment programs designed to address historical disadvantage.

This makes sense. “Formal equality” means we treat everyone the same, no matter what. If certain groups of people start off behind because of historical disadvantage, formal equality still leaves us unequal. This has to do with equity or “substantive equality”. (Here’s a good resource on this complicated topic: Equality is Not Enough )

The Ontario Human Rights Code carves out an exception for religious, philanthropic, fraternal or social organization employers focused on serving a specific identifiable group. Employers that fall into this category can engage in preferential hiring that targets members of the group they serve, if the criteria they use are reasonable and truly related to the work being performed. For example, a women’s shelter can prefer female job candidates for certain positions.

Other employers can create what the Human Rights Code calls “special programs”. These are initiatives designed to help disadvantaged persons or groups achieve equality, to counteract disadvantage or fight discrimination. The Human Rights Commission is empowered by the Code to grant formal special program designations. In practice, at present the Commission doesn’t actually provide this service. These designations aren’t necessary, but they could make it easier to defend your program if one of your employees or job applicants files a Human Rights Tribunal complaint. By seeking a designation before you receive complaints, you could receive feedback from the Commission about steps you should take to truly qualify as a “special program” provider. Without a designation you might find out too late that your well-meaning program falls short of the Code’s requirements.

However, Hamilton employers who want to create a special program can take steps to confirm that their hiring plan or other affirmative action policies are more like to qualify as a legal “special program”. By writing out your policy and backing it up with data about the community you serve and the services you provide, you can better position yourself to defend your hiring practices at the Tribunal – and provide clarity to job applicants and new hires.

WHERE DO I LEARN MORE?

If you are interested in creating a legally compliant affirmative action for your organization, speak to an employment lawyer or human rights lawyer about your options. And, hey, you don’t need to be a movie star. If you’re a star employee, consider talking to your boss about your inclusion rider! To find out more about affirmative action and human rights law in Ontario, check out these resources:

DISCLAIMER: This blog is for educational and informational purposes only and does not constitute legal advice. Comments are not regularly monitored and are not confidential. Please do not post comments containing the details of your case. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton human rights lawyer Sarah Molyneaux now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship.